FSJ.2017.II_PERARO.7DEF.pdf

Soggetto

Abstract

The phenomenon of posting of workers is increasing across the European Union
Member States and contributes to the development of the internal market. In the framework
of transnational provision of services, the Directive 96/71 was adopted with the aim of
establishing minimum working terms and conditions, and determining as applicable the law
of the host country, in respect of the principles of non-discrimination based on nationality and
equal treatment. However, according to European institution studies and Court of Justice case
law, the Directive did not grant effective remedies for employees seeking protection of their
rights. Against this background, the Directive 2014/67 intervened in order to complement and
introduce mechanisms to control the authenticity of posting, to enforce sanctions and impose
the duty to inform upon competent authorities. One provision, Article 11, recognises the right
to institute judicial or administrative proceedings for the defence of posted workers’ rights,
also by trade unions. Its transposition into the Italian legal order raises some doubts as to the
effectiveness of such remedies. Given that specific EU private international law rules are
lacking, it is wondered whether collective redress may be successfully promoted, and which
rules apply to cross-border judicial proceedings. In the end, judicial cooperation in civil and
commercial matters is closely linked to the free movement of persons, and the general
principle of mutual recognition of judgments is necessary for proper functioning of the internal
market.

The phenomenon of posting of workers is increasing across the European Union
Member States and contributes to the development of the internal market. In the framework
of transnational provision of services, the Directive 96/71 was adopted with the aim of
establishing minimum working terms and conditions, and determining as applicable the law
of the host country, in respect of the principles of non-discrimination based on nationality and
equal treatment. However, according to European institution studies and Court of Justice case
law, the Directive did not grant effective remedies for employees seeking protection of their
rights. Against this background, the Directive 2014/67 intervened in order to complement and
introduce mechanisms to control the authenticity of posting, to enforce sanctions and impose
the duty to inform upon competent authorities. One provision, Article 11, recognises the right
to institute judicial or administrative proceedings for the defence of posted workers’ rights,
also by trade unions. Its transposition into the Italian legal order raises some doubts as to the
effectiveness of such remedies. Given that specific EU private international law rules are
lacking, it is wondered whether collective redress may be successfully promoted, and which
rules apply to cross-border judicial proceedings. In the end, judicial cooperation in civil and
commercial matters is closely linked to the free movement of persons, and the general
principle of mutual recognition of judgments is necessary for proper functioning of the internal
market.